On June 6, 2012, a New York appellate court upheld the environmental review of a 16-lot subdivision in the Town of Cortlandt, New York, ruling that the State Environmental Quality Review Act (“SEQRA”) mandate to take “hard look” at the environmental and socioeconomic impacts of government actions does not require analysis of a project’s economic feasibility. Sive, Paget & Riesel, P.C. represented the Planning Board in the appellate proceedings of Kirquel Development, Ltd. v. Planning Board of the Town of Cortlandt, 2012 NY Slip. Op. 4342 (2d Dept. 2012).
The subdivision site contains extensive wetlands, Town-regulated steep slopes, and forests that provide habitat and migration corridors for local wildlife. Following more than three years of review and deliberation, the Planning Board conditionally approved a 16-lot residential subdivision – containing three fewer lots than the property owner had ultimately requested. The owner filed suit, arguing that additional lots were required to make the project profitable and that the Planning Board was required to analyze the alleged infeasibility of its approval under SEQRA. The Petitioner also challenged a series of development conditions imposed by the Planning Board.
The Supreme Court in Westchester County and the Appellate Division, Second Department upheld the 16-lot density, with the Second Department holding that “[c]ontrary to the petitioner’s contention, SEQRA does not require a lead agency to take a ‘hard look’ at the economic feasibility of a project.” This ruling builds upon a trio of First Department decisions from the 1990s, which first established that “financial feasibility of a project … is not an appropriate subject of review” under SEQRA.
The Second Department also reinstated five conditions that the Supreme Court had overturned, affirming the Planning Board’s authority to condition subdivision approval upon the completion of infrastructure improvements and other specified work to the satisfaction of the Town’s Director of Technical Services. These conditions had been challenged as an unconstitutional delegation of authority under the New York and United States Constitutions.